STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONNIE M. PORTER and )

RUTH M. PORTER, )

)

Petitioners, )

)

vs. ) CASE NO. 91-1976

) ESCAMBIA COUNTY UTILITIES ) AUTHORITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on June 11, 1991, in Pensacola, Florida, a formal hearing was held in this case. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioners: Ronnie M. Porter

6270 Ferguson Drive

Pensacola, Florida 32503

For Respondent: Robert W. Kievit, Esquire

15 West Main Street Pensacola, Florida 32501

STATEMENT OF THE ISSUES

The issues concern Petitioners' challenge to Respondent's decision to construct a sanitary sewer system to be known as the "Ladybird Waste Water Collection System." That system would be constructed in Escambia County, Florida, and would be funded in part by levying a special assessment on abutting property owners in accordance with Section 153.05, Florida Statutes.

Petitioners' property is an abutting property on Ferguson Drive.

PRELIMINARY STATEMENT

Respondent, having resolved by action of January 31, 1991, to construct the aforementioned Ladybird Waste water Collection System, Petitioner appealed that decision in accordance with Chapter 81-376, Laws of Florida. 1/ Respondent requested the assignment of a Hearing Officer to conduct a formal hearing. The Hearing Officer was assigned and the hearing conducted on the date previously described.

In furtherance of their petition, Ronnie M. Porter testified for Petitioners. Their composite exhibit 1 was admitted as evidence as was exhibit

2, a tape of the meeting of the Respondent of January 31, 1991, as it pertains to the Ladybird Waste Water Collection System.

Respondent presented the testimony of Alan Williams, Linda Iversen, Robert Dubose, Carlton Steen, and Robbie Underwood. Respondent offered five exhibits and they were admitted.

Testimony was also received from Katherine Johnson, a member of the public.

This Recommended Order is being entered following the opportunity for the parties to submit a proposed recommended order within ten days of the conclusion of the hearing. Respondent availed itself of the opportunity for such submission. Petitioners did not. The proposed fact finding by Respondent is commented on in the appendix to the Recommended Order attached.

FINDINGS OF FACT

1. On November 30, 1989, Respondent passed a resolution calling for the design and construction of a waste water collection system known as the Ladybird Waste Water Collection System. Construction would involve the imposition of special assessments on the lots and parcels to be served by the system. These assessments are contemplated by Section 153.05, Florida Statutes. One of the streets to be served was Ferguson Drive. Petitioners' property is adjacent to that street. The project would be located in Escambia County, Florida.

   
   

2. Although the residents in the area to be served by the system, when given the opportunity to request the construction of that system, did not favor the installation by a majority of residents answering the survey, the decision was reached to move forward with the project. The reason for this choice was that an alternative policy reason for carrying out the project, separate and apart from the request by persons living in the neighborhood, would be a determination that the construction needed to be carried out to alleviate a hazard to public health.

   
   

3. The public health concerns form the basis for the decision to construct the waste water collection system as found in the Escambia County Utility Authorities Resolution No. 89-19 passed on November 30, 1989, as alluded to before.

   
   

4. A survey of the general conditions in the area in question related to soil types and serviceability of the septic tank systems that were employed by the residents in the neighborhood, together with an understanding of the flow regime of sheet flow or storm water runoff, led to the conclusion that this area presents a health problem through the continued use of septic tanks in lieu of the waste water treatment system contemplated here. That perception is borne out by the facts presented at the hearing.

   
   

5. The lots on Ferguson Drive average 0.63 acre and some have more than a single family residence located on them. Petitioners' lot is approximately one acre. The smaller lots on Ferguson Drive present problems with the performance of existing septic tanks due to the limited lot size.

   
   

6. The area contemplated for service by the subject system is within a natural drainage basin bounded on the east by Interstate 10, on the south by a ridge line, on the west by a sparsely developed area, and on the north by a water body, Carpenter's Creek.

7. The soils in the area are a sandy loam for several feet down. Then from four to ten feet down is hardpan which forms an impermeable layer restricting the percolation of effluent being discharged into the septic tank drainfield. In effect, there is a perched water table which causes problems with the function of the transport and treatment effectiveness. The treatment effectiveness refers to biological treatment. This is especially true in wet seasons. Consequently, water quality problems are promoted. When the drainfields overflow health problems are presented.

   
   

8. In 1989 when the survey was being made to consider the appropriateness of the installation of the waste water treatment system, 124 lots were involved in the survey. Fifty-five of the lots were showing present or recent septic tank problems including raw sewage or waste water standing in the yard, running in the streets and in ditches adjacent to those yards.

   
   

9. In addition to the health problems caused by the raw sewage, persons living in the neighborhood have disconnected their washing machines because of the inadequacies of the drainfields in addressing treatment of that washwater and by discharging the washwater onto the surface of the yards, they have discharged pathogens. Those pathogens from washwater are another form of health problem.

   
   

10. When the surface water runoff or storm water runoff is moving across these properties it picks up the effluent creating greater problems during the transport.

    
    

11. With the advent of the waste water treatment system these health problems would be alleviated in a manner that the septic tanks are incapable of providing.

    
    

12. Of the areas which Respondent is aware of in Escambia County, which need attention for waste water problems, the neighborhood contemplated for service by the Ladybird Waste Water Collection System presents the most serious problems.

    
    

13. Carlton Steen, who has lived in the neighborhood for 30 years, identified some of the problems which he has had with his septic tank. Ten times the septic tank has backed up and allowed the effluent to run into the house ruining his carpet. On June 8, 1991, he had problems with his septic tank, a point in time when it had not rained for four days before June 8, 1991. He has his septic tank maintained in the sense of pumping it out. His problems are so severe that he can't take showers in sequence and he cannot flush the toilets in his house as frequently as he would like due to the septic tank complications. He has disconnected his washing machine and allowed it to put washwater on the surface of the yard. He has seen raw sewage and washwater standing in his yard on raining days. Water stands on his yard frequently and he receives runoff from other properties. In addition to seeing the sewage, he has detected the sewage by its smell.

    
    

14. Robbie Underwood lives in the neighborhood adjacent to the Porters. He has lived there for two years. His septic tank is in the back yard and he has experienced problems with it. He has problems with standing water south of where the septic tank is located. Water stands in his yard constantly. He has seen sewage and washwater in the yard and detected it by its appearance and odor. During the two years that he has lived at the residence he has had his septic tank system pumped out once but it filled back up in five days. The

    problems are so severe with his septic tank that he does not allow his six kids into that portion of the back yard where the septic tank drainfield is found.

    
    

15. By contrast Petitioners and Katherine Johnson who also lives on Ferguson Drive have not experienced problems with their septic tanks. Notwithstanding the good fortune of the Porters and Ms. Johnson, the proof at hearing demonstrates a prevalent condition of ineffective septic tank systems in the neighborhood and the need to install the waste water treatment system to remediate the condition and protect public health.

    
    

16. The surface water or storm water flow regime is such that the dangerous effluents make their way into Carpenter's Creek and affect the water quality of that water body.

    
    

17. In addition to conducting a survey to ascertain the position of the residents in the neighborhood concerning the installation of a sanitary sewer system, Respondent received petitions that had their origins with certain residents in the neighborhood. The latter petitions did not lead to the action to construct the system.

    
    

18. The final decision to construct the Ladybird Waste Water Collection System was reached by action of the Escambia County Utility Authority in Resolution No. 91-7 passed on January 31, 1991, following the publication of notice in a newspaper published in Escambia County. That notice reflected that the meeting would be held on January 31, 1991.

    
    

19. Petitioner Ronnie M. Porter attended that meeting and could have spoken in opposition to the decision. He elected not to offer his remarks, preferring instead to file the petition which lead to the present hearing.

    
    

20. Petitioners' complaints concern the contention that people didn't read the legal notices within the newspaper that alerted the public to the pending meeting of January 31, 1991. Nonetheless, Petitioner Ronnie M. Porter found out about the meeting and attended. He further observed that given the formal survey by the Respondent which did not eventuate in a majority of respondents calling for the installation of the waste water treatment system and the actions of citizens in the neighborhood not leading to sufficient interest in the project to cause it to occur to his knowledge, he was not concerned that the project would be pursued. Eventually he found out that the project had not been abandoned. It can be inferred that this resulted in his attendance at the meeting in which the decision was reached to pursue the project.

    
    

21. Mr. Porter believes that if some specific mailout had been directed to the residents in the neighborhood a greater number of those persons would have had knowledge of the pendency of a decision on the project which was reached on January 31, 1991. In particular, he has no confidence that the newspaper advertisement and notice placed in accordance with Section 153.05, Florida Statutes, was effective in the neighborhood. On the other hand, he recognizes that the legal notice in the newspaper suffices and that the mailout was not mandatory.

    
    

22. Mr. Porter also complains that those persons in the neighborhood who do favor the installation of the waste water treatment system do not recognize the true cost to them by way of assessment to support the system.

    
    

23. Mr. Porter realizes that small lot sizes such as exists with a number of lots of Ferguson Drive can cause a failure in the septic tank system;

    however, he believes that people with those problems should bear the burden of the cost of the installation of the system. In this thinking, assessing him for a system he does not need is not fair.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

25. Chapter 81-376, Laws of Florida, empowers the Respondent to provide certain utility services to include addressing waste water needs through a sanitary sewer system. To effectuate those purposes Respondent may levy a special assessment in accordance with provisions of Section 153.05, Florida Statutes, against the respective lot owners whose property abuts the streets in which the sewer lines will be installed. This includes Petitioners' property at Ferguson Drive. In particular, Chapter 81-376, Law of Florida, also contemplates the ability of the Respondent to charge Petitioners with the initial installation or connection of the system. These charges are fixed based upon a public hearing at which the user has the opportunity to be heard concerning the charges.

    
    

26. When confronted with the pendency of the construction of the Ladybird Waste Water Collection System Petitioners, in accordance with Chapter 81-376, Laws of Florida, petitioned Respondent for review of that decision leading to the formal hearing.

    
    

27. Petitioners bear the burden of proving that the decision to construct the system with its associated assessment is unacceptable. See Klein v. City of New Smyrna Beach, 152 So.2d 466 (Fla. 1963). Respondent is entitled to a rebuttable presumption that the decision to install the system and impose an assessment to assist in paying the cost is a correct choice in benefiting the public. See City of Gainesville v. Seaboard Coast Line Railroad Co., 411 So.2d 1339 (Fla. 1st DCA 1982).

    
    

28. The fact that Petitioners have not had difficulty with their septic tank does not exempt them from the requirement of contributing to the cost of the installation of the system or payment of the assessment for construction. See Peoples Water Service v. Adkinson, 184 So.2d 707 (Fla. 4th DCA 1966).

    
    

29. Petitioners have failed to demonstrate that the action by the Respondent was inappropriate in deciding to construct the Ladybird Waste Water Collection System and to pay for some of the cost incurred through the imposition of an assessment against property owners, to include Petitioners. Moreover, the notice that was given concerning the session at which the decision was finally reached to care for this project met the terms of Section 153.05, Florida Statutes.

RECOMMENDATION

Based upon consideration of the fact found and the conclusion of law reached, it is, RECOMMENDED that a final order be entered which dismisses the petition for review of the decision to construct the Ladybird Waste Water Collection System and to fund a portion of the costs through an assessment.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July, 1991.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1991.

ENDNOTES

1/ The Petitioner's challenge to the decision to install a waste water treatment system to serve Coleman Road is made moot by the fact that the project would not now include Coleman Road.

APPENDIX

The proposed findings of fact by the Respondent are subordinate to facts found.

COPIES FURNISHED:

RONNIE M. PORTER RUTH M. PORTER

6270 FERGUSON DRIVE

PENSACOLA, FLORIDA 32503

ROBERT W. KIEVIT, ESQUIRE

15 WEST MAIN STREET PENSACOLA, FLORIDA 32501

A. E. VANDEVER, EXECUTIVE DIRECTOR ESCAMBIA COUNTY UTILITIES AUTHORITY POST OFFICE BOX 15311

PENSACOLA, FLORIDA 32514

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-001976

Orders for Case No: 91-001976